The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Tuesday, 18 October 2011

The Court of Appeal speaks on August disorder sentencing

The Court of Appeal (Criminal Division) has issued judgment in relation to ten appeals against sentences imposed for convictions arising from the August disorder -R v Blackshaw and others [2011] EWCA Crim 2312.

On 20th August, in a post related to the August disorder, Law and Lawyers looked at relevant sentencing principles and also at the views arrived at by the Crown Court judiciary in Manchester. It was clear, even at that stage, that the context of widespread disorder would be seen as a serious aggravation of offences such as burglary, theft and handling stolen goods. The 20th August post commented that - "It must be doubtful whether the Court of Appeal would adopt a substantially different viewpoint" to that of the Manchester judiciary. This has proved to be the case though the Court of Appeal said that it is inappropriate for Crown Court judges to "issue, or appear to be issuing, sentencing guidelines." That is a task forthe Court of Appeal and the Sentencing Council - and the court and council have a relationship of "mutual respect and comity."

The Lord Chief Justice (LCJ) said that the courts had an overwhelming obligation to protect the public and sentencing could not ignore the context in which the offending occurred. Context can both mitigate and aggravate offending. The offenders dealt with in these appeals knew what they were doing - they were not children or mentally ill. Slavish adherence to guidelines was not required - (they were guidelines not tramlines) - but existing guidelines did not contemplate offending in the context of what the LCJ referred to as "nationwide public disorder." Sentencing beyond the usual ranges was inevitable.

Two of the cases (Blackshaw and Sutcliffe) concerned sentences relating to the use of Facebook. Those two cases were distinct from eachother and the offenders had each received sentences of 4 years imprisonment following, in Blackshaw's case a guilty plea to the offence under the Serious Crime Act 2007 s.46 and, in Sutcliffe's case a guilty plea to section 44 of that Act. The 4 year sentences were upheld by the Court of Appeal. Five cases were for offences of burglary and the appeals were dismissed and sentences upheld.

The final three cases were for handling stolen goods but here the Court of Appeal reduced the sentences in each case. The LCJ said (para 117):

"We now come to three offences of dishonest handling. In cases like these, a line needs to be drawn between the offences which arose from and were directly connected with the disorder (which is an aggravating feature in itself) and those which were intrinsic to the disorder (an even more aggravating feature). None of these cases of dishonest handling involves someone who handled stolen goods by way of encouragement of the commission of burglary and theft as part of the disorder. Rather each represents opportunistic involvement after the burglaries had occurred, and although in close proximity to the scenes of disorder, the appellants did not participate or contribute to them. The connection between the offences which they committed and the burglary and theft committed during the disorders takes them outside the ordinary guidelines for handling offences, but not every handling offence committed during the public disorder was as intrinsic to it as, say, the burglaries of shops which had been smashed and looted. The sentences must recognise these distinctions."

An interesting aspect of the judgment is the detailed analysis of the August events (paras. 22 to 52) and the reference to "Community Impact Statements." The Court of Appeal refers to such statements being prepared for a number of areas including a "London-wide statement" and then for various London Boroughs - e.g. Southwark and Haringey and also for Manchester and Salford. There is nothing in legislation dealing with such statements. Unfortunately, the court said nothing about how they are prepared and the precise uses to which they may be put when presented to lower courts (e.g. to Magistrates). This is a pity since such statements raise a number of interesting questions and answers may now have to await further cases.

Halloway - pleaded guilty at Magistrates Court to one offence of violent disorder and five of burglary. Committed for sentence. "Previous" - common assault in 2000. 28 months for the violent disorder + 28 months on each burglary (burglary sentences to be concurrent) - Sentence upheld.